Florida Criminal Law Opinions

Anthony J. Stokes, Appellant,
v.
The State of Florida, Appellee.

No. 3D08-2109.

District Court of Appeal of Florida, Third District.

Opinion filed February 18, 2009.

An Appeal from the Circuit Court for Miami-Dade County, Spencer Eig, Judge. Lower Tribunal No. 08-23147

Anthony J. Stokes, in proper person.

Bill McCollum, Attorney General, and Lunar Claire Alvey, Assistant Attorney General, for appellee.

Before WELLS, SHEPHERD, and SUAREZ, JJ.

WELLS, J.

Anthony J. Stokes appeals a final order denying his petition for writ of habeas corpus. Because we find that the Eleventh Judicial Circuit lacked jurisdiction to consider the claim raised in Stokes’ habeas petition, we affirm the denial without prejudice for Stokes to seek appropriate relief in the Seventeenth Judicial Circuit.

As this Court explained Brinson v. State, 988 So. 2d 665, 665-66 (Fla. 3d DCA 2008) (quoting Broom v. State, 907 So. 2d 1261, 1262 (Fla. 3d DCA 2005)) (citations omitted):

The circuit court of the county in which a defendant is incarcerated has jurisdiction to consider a petition for writ of habeas corpus when the claims raised in the petition concern issues regarding his incarceration, but not when the claims attack the validity of the judgment or sentence. Only the court in which the defendant was convicted and sentenced has jurisdiction to consider collateral attacks on a judgment or sentence, and such an attack must be brought pursuant to Rule 3.800 or 3.850, not by petition for writ of habeas corpus.

Because Stokes challenges his conviction and not the conditions of his imprisonment, we affirm the trial court’s order without prejudice. “Post-conviction challenges must be pursued in the circuit court where the conviction was obtained.” Brinson, 988 So. 2d at 666. Any challenge by Stokes to his conviction or sentence pursuant to Rule 3.800 or Rule 3.850, Florida Rules of Criminal Procedure, should be brought in the Seventeenth Judicial Circuit, where Stokes was convicted and sentenced.

Affirmed without prejudice.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

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The State of Florida, Appellant,
v.
Ceasar Alexander Reyes, Appellee.

No. 3D08-710.

District Court of Appeal of Florida, Third District.

Opinion filed February 18, 2009.

An Appeal from the Circuit Court for Miami-Dade County, William L. Thomas, Judge. Lower Tribunal No. 07-45072.

Bill McCollum, Attorney General and Heidi Milan Caballero, Assistant Attorney General, for appellant.

Carlos J. Martinez, Public Defender and Maria E. Lauredo, Assistant Public Defender, for appellee.

Before WELLS and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.

WELLS, Judge.

The State appeals from an order granting defendant Ceasar Reyes’ motion to suppress. Reyes was charged with third degree grand theft of a motor scooter and giving a false name. He moved to suppress the seized evidence relating to both crimes arguing that there was nothing about his behavior that would objectively justify the investigatory stop that led to discovery of that evidence. While we agree that the evidence regarding Reyes’ identity was properly suppressed, the evidence regarding the alleged theft of the motor scooter was not.

The sole witness called at the hearing on Reyes’ motion to suppress was Officer Carlos Cuellar, the arresting officer. According to Officer Cuellar, at approximately 4:30 a.m. on Wednesday, September 26, 2007, while on patrol in the area of 5th Street and Meridian Avenue in Miami Beach, he observed Reyes pushing a red motor scooter across a busy intersection. Officer Cuellar approached Reyes and asked if he needed help. Reyes declined assistance. Officer Cuellar noticed as he approached Reyes to offer help, that there was no key in the scooter’s ignition. He also noticed that Reyes was sweating and acting nervously. Cuellar, on patrol in this mixed residential/commercial area because of recent reports of burglaries and scooter thefts, asked Reyes, who had been coming from the direction of a scooter store, for identification. Reyes denied having any identification with him but told Officer Cuellar that his name was Caesar Rodriguez. Upon further questioning, Reyes advised Officer Cuellar that he did not have a key for the scooter but that the scooter belonged to a friend named Hugo, whose last name and address he did not know.

At this point, Officer Cuellar, suspecting that the scooter might be stolen, and fearing that Reyes might be armed, conducted a pat-down search of Reyes. During this search, Officer Cuellar discovered a Florida driver’s license with Reyes’ real name and photograph. Officer Cuellar then read Reyes his Miranda¹ rights. While this was transpiring, another officer arrived at the scene and checked the scooter’s vehicle identification number (“VIN”), which confirmed that a scooter store owned the scooter in Reyes’ possession. Reyes was placed under arrest.

Based on this testimony, the trial court concluded that no stop, detention, or arrest was justified and suppressed all evidence regarding Reyes’ identity and the scooter’s ownership. While we agree that the pat-down search exceeded the scope authorized by section 901.151 of the Florida Statutes and that the evidence seized during that search was properly suppressed, we cannot agree that no stop, detention or arrest was justified and that all of the evidence seized during Reyes’ stop and detention must be suppressed.

The Florida Supreme Court recognizes three types of police-citizen encounters. Golphin v. State, 945 So. 2d 1174, 1180 (Fla. 2006); Popple v. State, 626 So. 2d 185, 186 (Fla. 1993). The first is a consensual encounter involving minimal police contact during which a citizen may either comply with an officer’s requests or ignore them. These encounters “do not invoke constitutional safeguards.” Golphin, 945 So. 2d at 1180; Popple, 626 So. 2d at 186. The second is an investigatory stop during which an officer may temporarily detain a citizen if the stop is supported by a reasonable suspicion “that a person has committed, is committing, or is about to commit a crime.” Popple, 626 So. 2d at 186; Phillips v. State, 781 So. 2d 477, 479 (Fla. 3d DCA 2001) (confirming that to justify an investigatory stop, a police officer must have a well-founded, articulable suspicion that a person has committed, is committing or is about to commit a crime). The third is “an arrest which must be supported by probable cause that a crime has been or is being committed.” Popple, 626 So. 2d at 186.

The facts here confirm that Officer Cuellar’s first approach to Reyes to ascertain whether he could render assistance was purely a consensual encounter from which Reyes was free to walk away. However, this encounter evolved into an investigatory stop when, upon approaching Reyes, Officer Cuellar noticed that the scooter had no key and that Reyes was nervous and sweating. These observations, combined with the time of day; the fact that Reyes was coming from the direction of a scooter store; Officer Cuellar’s knowledge of recent scooter thefts in the area; and Reyes’ statements that the scooter belonged to a friend whose last name and address he did not know, all gave rise to a reasonable suspicion that criminal activity might be afoot. See State v. Lennon, 963 So. 2d 765, 768 (Fla. 3d DCA 2007) (holding that “[a]n officer . . . may detain a person in order to determine identity and circumstance when that officer has a reasonable suspicion, supported by articulable facts, that criminal activity may be afoot”).

As we stated in Lennon, 963 So. 2d at 768:

In determining whether a police officer possesses a reasonable suspicion to justify an investigatory stop, the court must consider the totality of the circumstances viewed in light of a police officer’s experience and background. See Hernandez v. State, 784 So. 2d 1124, 1126 (Fla. 3d DCA 1999); Brown v. State, 592 So. 2d 1237, 1238 (Fla. 1st DCA 1992); Moore v. State, 561 So. 2d 625, 626 (Fla. 1st DCA 1990).

In determining whether the circumstances are such as to justify an investigatory stop, the following factors should be considered:

The time; the day of the week; the location; the physical appearance of the suspect; the behavior of the suspect; the appearance and manner of operation of any vehicle involved; anything incongruous or unusual in the situation as interpreted in the light of the officer’s knowledge. To this list may be added, the factor of flight.

Lennon, 963 So. 2d at 768-69 (quoting Hernandez, 784 So. 2d at 1126).

Here, considering “the time . . . the physical appearance of the suspect, the behavior of the suspect… [and those things that were] incongruous or unusual in the situation as interpreted in the light of th[is] officer’s knowledge,” Lennon, 963 So. 2d at 768-69, a well-founded suspicion was demonstrated, justifying an investigatory stop. See Saturnino-Boudet v. State, 682 So. 2d 188, 191 (Fla. 3d DCA 1996) (confirming that when determining whether a reasonable and well-founded suspicion existed to justify the investigatory stop, the totality of the circumstances are to be examined); State v. Black, 617 So. 2d 777, 778 (Fla. 3d DCA 1993) (deciding that stop was justified where the officer observed defendant on the street at 6:50 a.m. pushing a shopping cart containing six rolls of new roofing paper who, in response to the officer’s questions, gave the unlikely explanation that he found the roofing paper in a trash pile); State v. Davis, 543 So. 2d 375, 377 (Fla. 3d DCA 1989) (finding that officer had reasonable suspicion to search a defendant who gave inconsistent answers to an officer’s questions and who was unable to describe the content of the bag that he allowed the officer to search).

The fact that the investigatory stop conducted by Officer Cuellar (and Reyes’ subsequent temporary detention) was supported by an articulable suspicion that criminal activity was afoot, does not, however, validate the search conducted during that stop and detention. To the contrary, section 901.151 of the Florida Statutes limits the scope of searches conducted during such stops to searches for weapons:

Whenever any law enforcement officer authorized to detain temporarily any person under the provisions of subsection (2) [authorizing investigatory stops and temporary detentions] has probable cause to believe that any person whom the officer . . . is about to detain temporarily, is armed with a dangerous weapon and therefore offers a threat to the safety of the officer or any other person, the officer may search such person so temporarily detained only to the extent necessary to disclose, and for the purpose of disclosing, the presence of such weapon. . . .

§ 901.151(5), Fla. Stat. (2008) (emphasis added); see Terry v. Ohio, 392 U.S. 1, 29 (1968) (confirming that a search conducted for the sole purpose of protecting a police officer and others must “be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, and other hidden instruments for the assault of the officer”); Piediscalzo v. State, 549 So. 2d 255, 256-257 (Fla. 2d DCA 1989) (same).

The officer in this case testified that he feared that Reyes might be armed and based on that fear conducted a pat-down search. Officer Cuellar did not, however, limit that search to a search for weapons. Rather, he testified that although he did not see or feel any bulge in Reyes’ clothing, and had no other indication that Reyes was in possession of a weapon, he reached into Reyes’ pocket and retrieved Reyes’ drivers’ license. This went beyond the scope of the search permitted making suppression of this evidence appropriate.

The same cannot, however, be said about the evidence relating to ownership of the scooter. The testimony about this evidence was that while Officer Cuellar was talking to Reyes and conducting the pat-down search, a backup police officer arrived and ran a check on the scooter’s VIN. That check, conducted before Reyes was arrested, confirmed that the scooter belonged not to Reyes or his friend, but to a scooter store. This evidence, secured independently from the pat-down search, was legally obtained following a valid investigatory stop and temporary detention. Since it was not connected to the tainted evidence obtained pursuant to the illegal pat-down search, it should not have been suppressed. See Jackson v. State, 34 Fla. L. Weekly D132 (Fla. 1st DCA Jan. 12, 2009) (“Even when a Fourth Amendment violation has occurred, evidence should be suppressed only if it `has been come at by exploitation of the illegality’ and was not obtained `by means sufficiently distinguishable to be purged of the primary taint.’ Wong Sun v. United States, 371 U.S. 471, 484 (1963).”).

Suppression of the evidence seized regarding Reyes’ identity is, therefore, affirmed; suppression of the evidence relating to ownership of the scooter is reversed.

Affirmed in part, reversed in part and remanded.

Not final until disposition of timely filed motion for rehearing.

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Notes:

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Courtesy of David Edelstein

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The State of Florida, Appellant,
v.
Larry Rogers, Appellee.

No. 3D08-491.

District Court of Appeal of Florida, Third District.

Opinion filed February 18, 2009.

An Appeal from the Circuit Court for Miami-Dade County, Ellen L. Leesfield, Judge. Lower Tribunal No. 07-35803.

Bill McCollum, Attorney General, and Lane Hodes, Assistant Attorney General, for appellant.

Carlos J. Martinez, Public Defender, and Thomas Regnier, Assistant Public Defender, for appellee.

Before WELLS and LAGOA, JJ., and SCHWARTZ, Senior Judge.

LAGOA, J.

On appeal, the State argues that the trial court erred in imposing a downward departure sentence, over the State’s objection, without providing valid oral or written reasons for the departure. The defendant, Larry Rogers (“Rogers”), concedes that the trial court erred in imposing a downward departure sentence. Accordingly, because the record contains no legal basis for the downward departure, we are compelled to reverse the sentence and remand for resentencing within the guidelines. On remand, Rogers must be afforded an opportunity to withdraw his plea. See State v. Perez, 802 So. 2d 1167 (Fla. 3d DCA 2001).

Reversed and remanded for proceedings consistent with this opinion.¹

Not final until disposition of timely filed motion for rehearing.

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Notes:

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Courtesy of David Edelstein

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JEFFREY DANIEL BUNCHE, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D07-5007.

District Court of Appeal of Florida, Fourth District.

February 18, 2009.

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County, Sandra K. McSorley, Judge, L.T. Case No. 06-13918 CF amb.

Carey Haughwout, Public Defender, and Timothy D. Kenison, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.

MAY, J.

The defendant appeals his conviction and sentence for burglary of a dwelling and grand theft. He argues the trial court erred in allowing the fingerprint expert to testify concerning the process employed for matching prints which included verification by another examiner. He also argues the trial court erred in allowing the State to comment on his right to remain silent. We affirm and address only the defendant’s first argument.

The State charged the defendant with burglary and grand theft of a neighbor’s home. The only evidence placing the defendant inside the neighbor’s home was prints taken from a box which had contained a Rolex watch.

During the trial, the fingerprint expert explained how a positive identification was made and confirmed the prints found on the box were those of the defendant.

State: Okay. Now, how many points of identification that your office requires, in other words, for it to be a print?

Witness: Well, again points alone does not make identification. Our department says you have to have at least nine, but that’s just the beginning stages of an i[]dent[ification].

State: Okay. Witness: Again, you have to have class characteristic, you have to have the Galton detail and then you have to have what we refer to, if there is any occasional features, which could include such things as flexion creases, warts, scars, all those things. We put all this information together and then you make a decision whether or not this is an identification.

State: Okay.

Witness: It’s a consensus, it’s not just one item. And then we have a second person to make an evaluation. We have two people look at every one of the cases.

Defense counsel lodged two objections: hearsay and lack of personal knowledge. The trial court overruled the objections, indicating that the expert was permitted to testify to the process employed in identifying the defendant’s prints.

The State then asked the expert: “And both people have to agree?” The trial court overruled defense counsel’s objection to improper bolstering and the expert continued.

Witness: Every time we have an identification where we’ve established the identifying an individual in a crime, we always have two people look at it.

State: Okay. Is there anything else you can tell the members of the jury that you noticed on those two prints?

Witness: Basically what I want to tell the jury is that we actually identified the defendant on this latent three times. The number three finger twice and part of the right palm, with the portion of the right palm once. So, there’s three fingerprints on this card that match the defendant.

The jury convicted the defendant and the trial court sentenced him to concurrent terms of ten and five years imprisonment, from which he now appeals.

Relying on Telfort v. State, 978 So. 2d 225 (Fla. 4th DCA 2008), the defendant argues the trial court erred in allowing the fingerprint expert to bolster his fingerprint identification by testifying that another examiner verified his work. We agree, but find the error harmless.

Experts may give their opinion on any disputed issue if they possess specialized knowledge that will assist the jury. §§ 90.702-706, Fla. Stat. (2006). Unlike a lay witness, an expert can rely on “facts or data [that] are of a type reasonably relied upon by experts in the subject to support the opinion expressed.” § 90.704, Fla. Stat. However, “an expert may not testify that the expert formed the opinion by conferring with others in the same field.” Telfort, 978 So. 2d at 226 (citing Schwarz v. State, 695 So. 2d 452 (Fla. 4th DCA 1997) approved by Linn v. Fossum, 946 So. 2d 1032 (Fla. 2006). Nor may an expert bolster his own opinion on direct examination with that of another expert. See id.

The issue here is whether a fingerprint expert, who has reached his own independent opinion, may explain the use of a second examiner in the verification process. Telfort addressed a similar, but not identical issue. No Florida court has actually considered the precise question presented here.¹

In Telfort, the issue was whether the expert could testify to his level of certainty about the print’s identification by relying on another examiner’s verification. 978 So. 2d at 226. We found error in the admission of the testimony because it constituted improper bolstering. Id. at 227. We reach the same conclusion here even though the fingerprint expert did not rely on the second examiner’s identification to assure his certainty. The State’s question “[a]nd both people have to agree” was a successful attempt to improperly bolster the testifying expert’s opinion.

We find the error harmless however. Goodwin v. State, 751 So. 2d 537 (Fla. 1999). “The question is whether there is a reasonable possibility that the error affected the verdict.” State v. DiGuilio, 491 So. 2d 1129, 1139 (Fla. 1986). Unlike Telfort, there was no dispute that the prints belonged to the defendant. Rather, defense counsel admitted that fact, but argued that the State could not prove when the prints were placed on the box. Thus, the error was harmless.

Affirmed.

WARNER and DAMOORGIAN, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

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Notes:

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Courtesy of David Edelstein

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JUSTIN MAYS, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D07-3814.

District Court of Appeal of Florida, Fourth District.

February 18, 2009

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Paul L. Backman, Judge, L.T. Case No. 06-6694 CF10C.

Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.

WARNER, J.

We affirm appellant’s sentences and reject his claim that he should have been allowed to withdraw his plea based upon misadvice of counsel as to the maximum sentence he would have to serve were he convicted at trial. While he alleges that counsel told him he would serve forty years, during the plea colloquy the trial court informed him that his maximum sentence for the crime of attempted robbery would be fifteen years, as well as 8.375 years for each of the other two charges against him.¹ He was sentenced to 8.375 years on each charge to be served concurrently. Jones v. State, 680 So. 2d 585, 587 (Fla. 4th DCA 1996), we said in connection with a similar claim:

Here, the judge correctly advised defendant as to [his sentence]. Defendant indicated that he understood the nature of the potential sentence. If he had been told something different by his lawyer, defendant was obligated to speak up at the plea conference and ask the court about the discrepancy. He could not stand mute, accept the benefits of the plea, and then collaterally attack its voluntariness on the basis of something that should have been cleared up at the time of the plea. Similarly, after the trial court informed him of the maximum sentence which was substantially shorter than what he claims his counsel informed him, it was his obligation to clear this up if it was material to his acceptance of the plea.

Affirmed.

POLEN and HAZOURI, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

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Notes:

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Courtesy of David Edelstein

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Harry Alfonso Thames, Appellant,
v.
The State of Florida, Appellee.

No. 3D07-2115.

District Court of Appeal of Florida, Third District.

Opinion filed February 18, 2009.

An Appeal from the Circuit Court for Miami-Dade County, William Thomas, Judge. Lower Tribunal No. 07-8085.

Carlos J. Martinez, Public Defender, and Jessica Zagier and Andrew Stanton, Assistant Public Defenders, for appellant.

Bill McCollum, Attorney General, and Timothy R.M. Thomas, Assistant Attorney General, for appellee.

Before SHEPHERD and SALTER, JJ., and SCHWARTZ, Senior Judge.

PER CURIAM.

There was no founded suspicion, much less probable cause of wrongdoing to justify the search and seizure involved in this case. Terry v. Ohio, 392 U.S. 1 (1968); Popple v. State, 626 So. 2d 185 (Fla. 1993); J.L.H. v. State, 990 So. 2d 686 (Fla. 2d DCA 2008); Alvarez v. City of Hialeah, 900 So. 2d 761 (Fla. 3d DCA 2005); State v. Taylor, 826 So. 2d 399 (Fla. 3d DCA 2002). Because the order denying the defendant’s motion to suppress was therefore erroneous, the conviction is reversed and the cause remanded with direction to discharge the defendant.

Not final until disposition of timely filed motion for rehearing.

SHEPHERD, J., concurring,

I concur that there was neither a founded suspicion nor probable cause of wrongdoing to justify the search and seizure involved in this case. The dissent forgets that when Mr. Thames originally was observed on March 3, 2007 at the corner of the building where the fence pole was located, he was not alone. The Officer’s testimony of their first encounter given at the suppression hearing is as follows:

Q. Can you tell the court how you first became familiar with Mr. Thames?

A. I came in contact with Mr. Thames on the 3rd of March. I received a call at Northwest 2nd Court and 17th Street, referenc[ing] several males selling narcotics[,] at which time I observed Mr. Thames at the corner of the store with another man. I approached him to get his information. He was not arrested that day.

Because Mr. Thames was not the only person near the pole, it is pure speculation—by the police at the scene and the dissent here—to associate him personally with the contraband. The only evidence supporting the arrest is the second day’s unprovoked headlong flight in a high crime area. By itself, this is insufficient to justify an arrest, see Illinois v. Wardlow, 528 U.S. 119 (2000), a search, see Sibron v. New York, 392 U.S. 40 (1968), or even a pat-down. See Terry v. Ohio, 392 U.S. 1, 30 (1968); see also Phillip A. Hubbart, Making Sense of Search and Seizure Law: A Fourth Amendment Handbook 259 (2005) (“[A] law enforcement officer, after making a valid temporary detention of a person based on reasonable suspicion, is allowed to conduct a patdown search of the outer clothing of the detainee for weapons, provided there is a showing of articulable suspicion that the detainee is armed and dangerous. The purpose of the limited patdown search is not to discover evidence of crime, but to allow the officer to pursue his or her investigation without fear of being violently assaulted.”) (footnote omitted).

SALTER, J. (dissenting).

I respectfully dissent. I would affirm the trial court because of the unusual chronology of this case and the additional information obtained by the officers between the initial stop and the search the following day.

Initial Stop and Later Discovery

Thames appeals from a guilty plea after the denial of his motion to suppress evidence. He was charged with possession of intent to sell cocaine within 1,000 feet of a school and with trespass.¹ The operative facts included three separate incidents: a preliminary investigation and stop; a discovery, later the same day, of a bag of cocaine rocks packaged for sale atop a fence pole only three or four feet from where Thames had been standing when initially observed; and, the following day, an encounter at the same location that resulted in flight by Thames.

I agree with the majority’s conclusion that the stop on the first day was not based on a founded suspicion or probable cause of wrongdoing sufficient under Terry² to justify the officer’s detention of Thames in the police vehicle. That was not, however, the end of the story.

Later that first day and in the same location, on top of a fence pole, the police discovered cocaine packaged in a manner ready for sale. There is no record evidence tying the later discovery of that cocaine to any information obtained from Thames in the course of the unlawful Terry stop. This new fact, as well as Thames’ unprovoked flight the second day, could thus be considered for purposes of evaluating the officer’s conduct in his interaction with Thames the following day.

Second Stop

The following day, the same officer observed Thames standing in front of a building next door to the property where he had been standing (and where the cocaine had been found atop the fence pole) the day before. When Thames saw the officer, he began running away. The officer and his partner pursued Thames and verbally warned him that a taser would be used if he did not stop and get down on the ground. Thames complied, and a pat down search outside his pockets revealed a bag of cocaine rocks packaged for sale. A more thorough search of the pockets then also produced $178.00 in small-denomination bills.

Analysis

Thames raised two issues during the suppression hearing and on appeal. First, he maintains that the arresting officer lacked a reasonable suspicion to stop Thames during their encounter on the second day. Second, Thames asserts that there was no basis under the “plain feel doctrine” to remove the rocks of crack cocaine from his pocket.

As noted, the stop on the second day was based on two facts that had not occurred when Thames was detained the first day. The discovery of a bag of cocaine rocks ready for sale only a few feet from where Thames was standing provided one such fact. The second new fact was Thames’ unprovoked flight. Viewing the trial court’s assessment of this evidence in the required light, I find no error.

“Flight, by its very nature, is not `going about one’s business;’ in fact, it is just the opposite.” Illinois v. Wardlow, 528 U.S. 119, 125 (2000). Here, the arresting officers also knew about the cache of rock cocaine in baggies discovered the previous afternoon, providing the “other suspicious circumstances” that distinguish this case from Cobb v. State, 511 So. 2d 698, 699 (Fla. 3d DCA 1987) (attempt to leave the area upon seeing police not, by itself, enough to create a reasonable suspicion). See also Hernandez v. State, 784 So. 2d 1124, 1127 (Fla. 3d DCA 1999).

Turning to the discovery of the cocaine rocks in Thames’ pockets after he was stopped, the trial court’s ruling is correct under the so-called “plain feel” doctrine, applicable to “an object whose contour or mass makes its identity immediately apparent” during a pat down for weapons. Minnesota v. Dickerson, 508 U.S. 366, 375 (1993). The trial court’s evaluation of the officer’s credibility, the officer’s experience with prior crack cocaine arrests, and the manner in which he conducted the pat down, are also entitled to a presumption of correctness.

For all these reasons, I respectfully dissent and would affirm the circuit court suppression order and judgment.

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Notes:

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Courtesy of David Edelstein

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LUKCE AIME, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D07-1759.

District Court of Appeal of Florida, Fourth District.

February 18, 2009.

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County, Krista Marx, Judge, L.T. Case No. 06CF008366A02.

Carey Haughwout, Public Defender, and David John McPherrin, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.

MAY, J.

The sufficiency of the evidence is put to the test in this appeal. The defendant appeals his conviction and sentence for manslaughter with a firearm. Among other issues, the defendant argues that the evidence was insufficient to support the manslaughter conviction because the State failed to establish that he was the shooter or aided and abetted another in the fatal shooting. We agree and reverse.

The State charged the defendant with first-degree murder that arose from a shooting incident near a convenience store. It was the State’s theory that the shooting was part of a robbery or at least an attempt. The State introduced testimony from two girls, who had been present on the day of the shooting. A careful reading of their testimony, however, reveals that neither witness actually saw the defendant rob or shoot the victim or saw the defendant in possession of a firearm.

On the day of the murder, Darlisha Johnson was driving around in a mini-van with two other girls, Shepherd and Herald, and two babies. Johnson stopped at a convenience store and parked the van at the side of the building.

As Johnson left the store, she observed the victim walk toward his car, at which point, she saw several boys, including the defendant, walk up behind the victim. She then saw the victim in the middle of the street, surrounded by the boys. She was unable to hear what the boys were saying, but saw the victim throw up his hands in a movement that suggested “what’s up.” As she walked to her van, she turned back towards the group and saw the victim stumble as if he were ready to fall. She noticed that his pants pockets were turned inside-out, but did not see the boys take anything from the victim.

The victim ran, got into his car, made a U-turn, and stopped at a traffic light. While he was sitting at the light, the group of boys, including the defendant, began to approach the car. The victim made the turn, and began driving toward the boys. When it appeared that the victim was going to try to hit them, the boys jumped back out of the way.

While Johnson was putting her child into the car seat, she heard shots and saw the victim’s car hit a building. She testified that Shepherd told Herald to call the police on her cell phone. However, Herald refused, indicating that she wasn’t going to use her phone to call the police, “not on my man.” Johnson never saw the defendant with a gun.

The second eyewitness to testify was Shepherd, who also knew the boys. She testified that she saw the defendant cross the street with the other boys behind him. She subsequently saw the defendant lift his shirt, and then heard a gunshot. She confirmed Johnson’s testimony that Herald refused to call the police on her cell phone. She understood Herald to mean that the defendant was “her man.”

During direct examination, the State attempted to impeach Shepherd regarding a prior statement to law enforcement in which she had stated that she had seen the defendant take a necklace from the victim and saw the defendant with a gun. However, in further questioning she testified that her statement to law enforcement had been based on information provided to her by the detective. She did not actually observe either the taking of the necklace or the defendant in possession of the gun.

At the close of the State’s case, the defendant moved for judgment of acquittal. The trial court granted the motion on the first-degree murder charge because the State was unable to prove that the defendant had possessed the gun, but allowed the case to go to the jury on a felony murder charge based on the principal theory and robbery.

In its closing, the State read back Shepherd’s testimony concerning the theft of the necklace and the defendant’s possession of a gun. The State then argued that the evidence established that the defendant had participated in a robbery of the victim culminating with the shooting death of the victim. The State argued that the defendant was therefore guilty of felony murder.

Defense counsel did not request an instruction on the lesser included offenses of first degree felony murder, but the State requested “all of the category 1 lessers.” The jury was instructed upon first degree felony murder and the lesser offenses of second degree murder and manslaughter, both with and without a firearm.

During deliberations the jury requested a read-back of the testimony of Johnson and Shepherd. The jury found the defendant guilty of only the lesser included offense of manslaughter with a firearm, and also made a factual finding that the defendant did not possess the firearm. The trial court adjudicated him guilty. The defendant moved for a postverdict judgment of acquittal, which the trial court denied.

On appeal the defendant raises several issues, but we find the sufficiency of evidence issue controls the outcome. The defendant argues that the evidence was insufficient to convict him of manslaughter as the trial court had already granted a motion for judgment of acquittal because there was no evidence that the defendant either possessed a gun or aided and abetted someone with a gun. The State makes two arguments in response. First, it argues that because the defendant did not object to the State’s request for an instruction on the necessarily lesser included offenses, the defendant waived his right to raise the sufficiency of the evidence as to the manslaughter charge. Second, the State argues that the evidence was sufficient. We disagree with the State on the waiver issue, and agree with the defendant that the evidence was insufficient.

Our supreme court addressed a similar waiver argument State v. Espinosa, 686 So. 2d 1345 (Fla. 1996). There, the defendant was charged with resisting arrest with violence. The defendant requested the permissive lesser included offense of resisting without violence. The jury convicted the defendant of the lesser included offense.

On appeal, the defendant argued the evidence was insufficient to sustain the conviction on the lesser included offense. The State responded that the defendant should not be able to contest the sufficiency of the evidence on the lesser included offense after having specifically requested an instruction on the lesser. The court held that “a defendant who requests an instruction on a lesser-included offense should [not] be allowed to complain on a sufficiency of the evidence claim on the lesser-included offense when sufficient evidence exists to convict the defendant for the greater offense.” Id. at 1348.

This case however is distinguishable from Espinosa. First, this case involves category one necessarily lesser included offenses, not permissive lessers as was the case in Espinosa. Second, the defendant did not ask for the instruction on category one lesser included offenses in this case; rather, the State asked for them. As category one necessarily lesser included offenses, the trial court had no discretion on whether to give the instruction. See Michelson v. State, 805 So. 2d 983, 986 (Fla. 4th DCA 2002) (Gross, J., specially concurring). Thus, there was no waiver on the part of the defendant that prevents him from arguing the insufficiency of the evidence on the lesser included manslaughter charge.

We turn now to the sufficiency of the evidence. “It is incumbent upon the state to introduce competent evidence of each element of the offense charged.” Cox v. State, 764 So. 2d 711, 712 (Fla. 1st DCA 2000). While the law allows the admission of some prior inconsistent statements as substantive evidence, those statements cannot be the sole evidence of guilt and must comport with section 90.801(2)(a), Florida Statutes (2007). Pearce v. State, 880 So. 2d 561, 569 (Fla. 2004); State v. Moore, 485 So. 2d 1279 (Fla. 1986).

The trial court acquitted the defendant of premeditated murder because there was no evidence that the defendant possessed the gun, but allowed the jury to consider the charge of felony murder based upon the robbery. The trial court explained that the defendant could be held responsible as a principal in the robbery, thereby allowing the jury to consider the felony murder charge even though there was no evidence that the defendant possessed the gun.

To support the defendant’s conviction for manslaughter, however, the evidence had to establish that the defendant was the actual shooter or that he aided or abetted another in committing the crime. The trial court had already determined that the evidence was insufficient to establish that the defendant possessed a gun, leaving only the possibility that the defendant aided or abetted the shooter. That evidence was lacking.¹

Despite the tragic death of the victim, the State simply did not introduce sufficient evidence to prove beyond a reasonable doubt that the defendant committed manslaughter. We therefore reverse the defendant’s conviction and remand the case for the defendant’s discharge.

Reversed and Remanded.

WARNER, J., concurs.

BIDWILL, MARTIN J., Associate Judge, dissents with opinion.

—————

Notes:

—————

BIDWILL, MARTIN J., Associate Judge, dissenting.

The majority reverses the defendant’s conviction because the State failed to present sufficient evidence that the defendant committed the crime of manslaughter. Because I believe the appropriate question to ask is whether the State presented sufficient evidence to support a conviction for first degree felony murder, and because I believe the State did, I respectfully dissent.

The State charged the defendant with first degree murder. The trial court granted the defendant’s motion for judgment of acquittal on the theory of premeditated first degree murder, but denied the motion on the State’s alternative theory of first degree felony murder. At the State’s request, but without objection from the defendant, the trial court instructed the jury on the lesser included offenses of second degree murder and manslaughter. The jury returned a verdict convicting the defendant of manslaughter with a firearm.

Manslaughter is a category one, necessarily lesser included offense of first degree felony murder. As such, the crime of manslaughter is always legally subsumed within the greater offense of first degree felony murder. See State v. Wimberly, 498 So. 2d 929, 932 (Fla. 1986). Because a necessarily lesser included offense is always included within the greater offense as a matter of law, an analysis of the sufficiency of the evidence to support a conviction for the necessarily lesser included offense is properly focused on the sufficiency of the evidence to support the greater offense. Michelson v. State, 805 So. 2d 983, 986 (Fla. 4th DCA 2001) (Gross, J., concurring specially). As now Chief Judge Gross explained in his concurring opinion in Michelson:

Where sufficient evidence exists to convict the defendant for the greater offense of felony murder, I do not believe that a conviction for the necessarily included offense of second degree murder is subject to attack on the ground of insufficiency of the evidence. Such a crime is included in the greater charge as a matter of law.

Id. I agree with this reasoning and believe it applies here. Although the defendant was convicted of the necessarily lesser included offense of manslaughter, the Court’s postconviction review of the sufficiency of the evidence must ask whether there was sufficient evidence to support a conviction for the greater offense of first degree felony murder. If the State presented sufficient evidence of the greater offense, the conviction for the necessarily lesser included offense is not subject to attack on the ground of insufficiency of the evidence.

After carefully reviewing the trial transcript, I believe there was sufficient evidence in the record to allow the trial court to submit the charge of first degree felony murder to the jury. I respectfully disagree with the majority’s conclusion that Curtisha Shepherd’s testimony actually reveals that she did not see anyone take the necklace from the decedent Carlos Segura. As I read her testimony, Ms. Shepherd testified that she observed the defendant and another young man take a necklace from Mr. Segura. It is not clear to me that this portion of her testimony was merely a reference to a prior statement, or that it was based on information provided to her by the police. To be sure, other portions of her testimony arguably are inconsistent with this testimony, but inconsistencies bear on the ultimate weight to be placed on the testimony, a decision for the jury and not the court.

Darlisha Johnson testified that, when the defendant and his accomplices confronted Mr. Segura, she observed Mr. Segura with his arms up, bent ninety degrees at the elbows. She also testified that she observed Mr. Segura’s pants pockets pulled out, observed one of the young men to be armed with a clearly visible handgun, and observed Mr. Segura stumble and almost fall during the incident. Further, Ms. Johnson testified that Mr. Segura was visibly furious after the initial confrontation, and that, moments later, he was driving his vehicle toward the defendant and his accomplices at a high rate of speed when he was shot.

Considering the testimony of Ms. Johnson and Ms. Shepherd together, there was, in my view, sufficient evidence that would allow a rational trier of fact to find beyond a reasonable doubt that the defendant participated in a robbery of Mr. Segura. As a rational trier of fact also could conclude that a principal to the robbery killed Mr. Segura, without a definitive break in the chain of circumstances that began with the robbery and ended with the killing, Parker v. State, 641 So. 2d 369, 376 (Fla. 1994), there was sufficient evidence in the record to justify the trial court’s decision to submit the charge of first degree felony murder to the jury. I would affirm the defendant’s conviction.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

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JUAN FIGUEROA, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 2D06-3201.

District Court of Appeal of Florida, Second District.

Opinion filed February 18, 2009.

Appeal from the Circuit Court for Lee County, Lynn Gerald, Jr., Judge and Jack R. Schoonover, Senior Judge.

James Marion Moorman, Public Defender, and Douglas S. Connor, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Appellee.

WHATLEY, Judge.

Figueroa appeals his convictions of first degree felony murder and attempted robbery with a firearm. We affirm his convictions without comment, but we reverse his sentence for attempted robbery with a firearm.

At sentencing for the two offenses, the trial court adjudicated Figueroa guilty pursuant to the verdicts of guilty rendered by the jury, and it sentenced him to life for the felony murder and twenty years for the attempted robbery. The court advised Figueroa that he had thirty days to appeal, and the hearing concluded. The next day, the prosecutor and defense counsel appeared before the court. The prosecutor advised the court that the applicable minimum mandatory term for attempted robbery with a firearm was not twenty years, but twenty-five years. See § 775.087(2)(a)(3), Fla. Stat. (2006). Defense counsel agreed, and the trial court amended Figueroa’s sentence accordingly.

The trial court’s action violated Figueroa’s double jeopardy rights, despite the fact that the twenty-year term was erroneous. See Pate v. State, 908 So. 2d 613 (Fla. 2d DCA 2005). Under nearly identical facts, the supreme held:

[T]he fact[s] reflect that a voluntary plea of guilty was entered and sentence imposed and the hearing concluded. The record also indicates that there was no further contemplated hearing for that day in the cause; thus the matter was concluded for all purposes.

. . . .

Jeopardy had attached in petitioner’s case and the sentence which had been imposed could not thereafter be increased . . . in violation of defendant’s constitutional guaranty not to be twice placed in jeopardy.

Troupe v. Rowe, 283 So. 2d 857, 859-60 (Fla. 1973); accord Obara v. State, 958 So. 2d 1019 (Fla. 5th DCA 2007); Gallinat v. State, 941 So. 2d 1237, 1240 (Fla. 5th DCA 2006) (“Under Troupe, when the sentencing hearing concludes, jeopardy attaches . . . .”).

Accordingly, we reverse Figueroa’s sentence of twenty-five years for the attempted robbery conviction and remand with directions that the trial court reimpose the original twenty-year sentence for this offense.

Reversed and remanded with directions.

CASANUEVA and LaROSE, JJ., Concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.

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STATE OF FLORIDA, Appellant,
v.
RODRIGUEZ D. LOVINGS, Appellee.

Case No. 1D07-6385.

District Court of Appeal of Florida, First District.

Opinion filed February 17, 2009.

An appeal from the Circuit Court for Duval County, John M. Merrett, Judge.

Bill McCollum, Attorney General, and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellant.

Nancy A. Daniels, Public Defender, and Paula S. Saunders, Assistant Public Defender, Tallahassee, for Appellee.

PER CURIAM.

The state appeals an order by which the trial court withheld adjudication upon three offenses for which the appellee pled guilty. One of the offenses (possession of MDMA) is a third degree felony as indicated in section 893.13(6)(a), Florida Statutes. Adjudication had previously been withheld upon another felony and the court was therefore precluded from withholding adjudication here, unless requested by the prosecutor or unless the court made written findings as specified in section 775.08435(1)(c), Florida Statutes. The prosecutor did not request a withheld adjudication, and instead objected to that while pointing out to the court that the appellee had a prior withhold on another felony. The parties agree that the court should not have withheld adjudication for the present felony without making the necessary findings.

The appealed order is reversed as to the withheld adjudication for the MDMA offense, and the case is remanded. If the prosecutor does not request a withheld adjudication on remand, the court should either enter an adjudication of guilt or make the necessary findings under section 775.08435(1)(c).

BARFIELD, ALLEN, and THOMAS, JJ., CONCUR.

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED.

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DALE OSBORN, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 1D07-4783.

District Court of Appeal of Florida, First District.

Opinion filed February 17, 2009.

An appeal from the Circuit Court for Liberty County, L. Ralph Smith, Jr., Judge.

Nancy A. Daniels, Public Defender, and M. J. Lord, Assistant Public Defender, for Appellant.

Bill McCollum, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, for Appellee.

PER CURIAM.

Appellant, Dale Osborn, challenges the trial court’s determination that he violated the terms of his probation and the sentence it entered upon revoking his probation. We affirm the violation of probation determination without further comment.

As to sentencing, Appellant contends because he initially received a true split sentence of fifteen years’ incarceration, the trial court could not resentence him to fifteen years’ incarceration plus an additional fifteen years’ sex offender probation. We agree and reverse.

On April 29, 2002, the trial court sentenced Appellant to a true split sentence of ten years’ incarceration to be followed by a five-year suspended sentence and five years’ sex offender probation. Under this sentence, fifteen years was the maximum amount of time Appellant could possibly spend incarcerated. On August 8, 2007, the trial court revoked Appellant’s probation and sentenced him to a term of fifteen years’ incarceration followed by an additional fifteen years’ probation.

Because Appellant’s original sentence was a true split sentence, the maximum sentence he could receive for violating his probation was fifteen years’ incarceration with credit for time served. See Poore v. State, 531 So. 2d 161 (Fla.1988); State v. Powell, 703 So. 2d 444 (Fla.1997); Liles v. State, 837 So. 2d 1151 (Fla. 1st DCA 2003); Crawford v. State, 763 So. 2d 1240 (Fla. 1st DCA 2000). Accordingly, we reverse with instructions for the trial court to sentence Appellant to not more than fifteen years’ incarceration with credit for time served. We affirm all other grounds.

AFFIRMED in part, REVERSED in part, and REMANDED with instructions.

HAWKES, C.J., WOLF and KAHN, JJ., CONCUR.

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED.

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